Against Presidential Immunity

    Some years ago I wrote a piece, on my oooold personal web page, discussing the case of a farmer who had killed his severely disabled daughter with carbon monoxide. There was ample reason to believe that he considered this an act of mercy, and that he believed she was suffering greatly. There was little reason to doubt that he loved his daughter. And yet there was no doubt that he had killed her, in clear violation of the Criminal Code of Canada. 

    In that piece, I expressed some sympathy for the man's predicament, but concluded that it was legally appropriate that he be found guilty. Indeed, because he clearly intended her to die and was not merely indifferent as to whether or not she survived his efforts, it definitely met the criteria for first degree murder, but because even the prosecutor thought a life sentence with no possibility for parole for 25 years seemed harsh for someone in his situation, he was only charged with second degree. I thought, and still think, that the appropriate way to address this kind of tragic case, if we feel a need for leniency, is through a pardon rather than a not guilty verdict.

    And yes, I know that a pardon is a risky thing to gamble on, because not everyone thinks his crime should be pardoned, and that might include the pardoning authority. Fine, so be it. But the point here is that taking a life is a very, very serious decision, and really ought to be taken seriously. If you do not think ending your child's suffering is at least important enough to warrant serving a life sentence, then maybe it's unrealistic to expect someone else to think you deserve to be pardoned. 

    So the recent U.S. Supreme Court decision granting immunity from criminal prosecution to the President for "official acts" strikes me as exactly the opposite of this kind of reasoning. I certainly would never say that the President might not be called upon to make extremely challenging and perhaps even criminal decisions. Ordering F-16s to shoot down a hijacked passenger jet, for example, is something we would all hope never becomes necessary, but is within the realm of possibility, and if there's any reason to doubt the extenuating circumstances, a pretty heinous crime.

    But here's the thing: I don't want someone to approach this question lightly. I don't want them to be "nimble" in deciding. I want them to only undertake such a fateful decision if they are willing to throw themselves at the mercy of the court and accept whatever judgment comes. Giving blanket immunity for "official acts" might be fine if we could trust that the decision-maker had a strong moral compass and character, but that's not something we can ever rely upon, especially if we offer them immunity up front. 

    This is a recipe for dictatorship, and not a benevolent one. Any leader who wants this kind of immunity absolutely should not be given it, and anyone who deserves it will not want it.